Developing an Impartial and Appropriate Factual Record Gladys O. Collazo And Diane Gross

When is the Report of Investigation complete Claims are properly stated Affidavits of all relevant management officials are included The affidavits clearly explain “why” the action was taken Affidavits of witnesses proposed by Complainant were taken or a clear explanation of why their affidavits were not taken Even when managers state in their affidavits that they do not remember all the facts, they explain a few and the general environment of the workplace (think hostile work environment)

What to do if Record is complete Inquire with the parties whether they agree Wait for Motion for Summary Judgment Issue Notice of Intent to Issue Summary Judgment

When is the Report of Investigation NOT complete When is the Report of Investigation NOT complete *Claims are not properly stated * Affidavits do not provide reasoning for actions or simply deny discrimination or bias * Affidavits of relevant management officials are missing or incomplete * Relevant documents are missing * No clear facts establishing articulation

What to DO AJ authority: once a hearing request is filed AJ takes control of the complaint and the record Either by motion of the parties or on own volition, AJ may: 1. Order Supplemental Investigation 2. Issue Order to Show Cause why the Agency should not be sanctions for such a deficient record—sanctions could be several (such as: default judgment, payment of cost of discovery) 3. Allow the parties to cure the record in discovery 4. Proceed to hearing

1. Supplemental Investigation AJ may give Agency a list of all items that the supplemental investigation should include: a) affidavits of relevant managers and/or additional witnesses with real narrative explaining reasons for actions; and incidents that witnesses heard or saw that shed light into the claims; b) missing documents such as emails, letters, drawings, photos, etc.; c) Deadline to produce it. AJ may consult the parties so that all information missing is obtained at once. AJ’s purpose: obtain the necessary facts to issue a fair decision.

2. Order to Show Cause why Agency should not be sanctioned for defective report of investigation Possible Sanctions: both have advantage and disadvantages a) finding of discrimination b) discovery cost

3. Allow discovery Give the parties the discovery they think is proper; limited by what is relevant and material. Include interrogatories, admissions, requests for production, and depositions.

4. Hearing: last chance to develop the record Witnesses testimony-this is the best evidence. Witness will attest under oath of the reasons for their actions Witness will tell their story Judging credibility Enter into the record relevant documents previously missing Rules of evidence and procedure used for guidance, but not applied strictly AJ’s goal is always to gather the facts to make an fair decision

Case sample: Harassment Record is complete C alleges that one of the OIT male contractors harassed by moving close to her shoulder over the computer screen and taking the computer mouse away from her. His face was close to hers and she had to get and move out of her chair. C complained to her supervisor. She contacted an EEO counselor and filed a complaint. There were no other acts.

Claim: properly stated as sexual harassment when she was subjected to such conduct Evidence in the report of investigation included: statement from supervisor saying all the steps she took after C came to see her to complaint. Supervisor included the statement she took from the OIT contractor. Supervisor included what she did-asked the OIT supervisor to talk to the contractor. The contractor supervisor and the C’s supervisor explained what constitutes sexual harassment and what inappropriate conduct was. Reiterated the Agency’s sexual harassment policy is. Contractor agreed to apologize the C. Supervisors told C to report any other incidents. In her affidavit, C admitted she had no other incidents with the contractor. Supervisors attested that C did not report any other incidents. Both supervisors attested that they wrote a report and concluded that no further action would be taken in the matter.

Record NOT complete Claim properly identified Evidence on the record: affidavit of C’s supervisor attesting that C complained to her and after she investigated, she determined nothing else needed to be done. Missing: facts to know what she did to determine if the incident C brought to her attention was severe or pervasive enough to constitute actionable harassment. Do: allow discovery/ who was involved in the actions depositions of the contractor, and the manager/s

After discovery: Information comes to light that contractor has done this to other women. Creates an issue of material fact or credibility-single, isolated act or pattern. Do: hearing- Testimony is the best evidence Bring the other women as witnesses Did they complaint? What did the Agency do?-knew or should have known Contractor Get a clear and complete picture- a complete factual record Goal: gather information to issue fair decision

Questions???? Thanks.